SANJEEV KUMAR MATHUR vs FINE FABRICATION WORKS

THIS is an appeal against the judgment and order dated 28.12.2000 passed by District Consumer Forum, Raibareilly in Complaint Case No. 14/1998.

THE brief facts of the case as stated before the Forum are as follows : THE complainant Sri Sanjeev Kumar Mathur in order to set up a Mini Dal Mill obtained a loan of Rs. 60,000/- from the Bank under the scheme entitled as Prime Minister''s Rojgar Yojana. A component of this loan amounting to Rs. 35,000/- was meant for purchase of machinery and the remaining part of the loan was to be utilized for raw material. During the course of formalities which had been completed in respect of loan by the complainant, the agent of the opposite parties met the complainant and promised to supply the relevant machinery of standard specifications for the project which was to be set up for self employment. THE Pulse Mill Machinery which was to be supplied was to be of capacity to process the pulse of one quintal per hour. THE Mini Grain Mill was to be of the capacity which could grind the grain of 25 kgs. in one hour. THE guarantee of the machine to be supplied was to last for one year. Believing on the version of the agent of the opposite parties, an order was placed by the complainant with M/s. Fine Fabrication Work, opposite party for supply of Pulse Mill Machinery with the capacity to process the pulse of one quintal per hour Grain Cleaner Cum Grader, Mini Grain Mill complete workable on single Phase of 1 H.P. Motor was also ordered to be supplied. THE total cost of these machineries amounted to Rs. 25,000/-. Accordingly the machinery goods were supplied by the opposite parties on 9.8.1997 in a wooden package through the transport. THE packing charges were also paid by the complainant amounting to Rs. 2,000/-. THE transportation charges of Rs. 3,815/- were also paid by the complainant. THE documents were retired through the Bank and the cost of the machine was paid to the opposite party accordingly. THE complainant in order to instal the machines had spent an amount of Rs. 10,000/- in laying the foundation for the machineries. An amount of Rs. 8,000/- was also spent on the raw-material by the complainant. On opening the wooden case in which the machineries were kept, the complainant found that the machines supplied were not of standard specifications as laid down in the booklet. THE roller of the Dal Mill was found to be completely jammed. THE stone of the grinding mill was also found to be static and was unable to move. Duplicate bearings have been used in the machinery. THE Dal Mill did not have the capacity to process the Dal of 1 quintal in one hour and was thus found to be below capacity. Similarly the grain mill was also found to be insufficient for grinding 25 kgs. of grains. THE complainant then sent a registered letter to the opposite parties indicating the defects in the machines. Inspite of assurances given by them, the machines were neither rectified nor replaced. THE opposite parties, therefore, committed deficiency in service by indulging into unfair trade practice which has resulted into financial loss to the complainant. THE complainant, therefore, lodged a claim before the District Consumer Forum seeking a direction to be given to the opposite parties to replace the machineries and an amount of Rs. 30,000/- spent on the building of foundation and raw-material etc. was also claimed. THE complainant has suffered a financial loss of Rs. 10,000/- because of non-utilization of the loan and this amount was also claimed. An amount of Rs. 50,000/- was also claimed for physical and mental torture and loss of social status. The opposite party No. 1 M/s. Fine Fabrication Works filed a written statement before the District Consumer Forum and denied most of the allegations contained in the complaint. It was contended on behalf of the opposite parties that the order for the machinery was placed by the complainant and the machinery was of standard specification. There was no agreement to the effect that the replacement or removal of the defects was to be made by the opposite parties for indefinite period. The opposite parties 1 and 2 run the factory which is of repute in Bhopal.

The parties led evidence before the learned District Consumer Forum, who after hearing them, came to the conclusion that the demand for refund of the price of the machine by the complainant was not found to be genuine as no manufacturing defect has been proved. The complaint was, therefore, dismissed.

AGGRIEVED of this order of the learned District Forum the complainant has come in the appeal. We have heard the arguments of the learned Counsels for the two parties.

THE learned Counsel for the appellant has argued that the defective machines were supplied by the opposite parties, in proof of which the documentary evidence has been given before the Forum and the same was not considered. THE opposite parties have not supplied the machines in accordance with the terms as agreed upon between the two parties. THE machineries were purchased for the purposes of self employment by taking loan from the Bank and in the process the employment could not be carried out because of defective machines. As to the defects in the machines, the same has been certified by a qualified Engineer and, therefore, either the defective machines be replaced or the amount paid against them be refunded as the defects are such which cannot be rectified. On the other hand, the learned Counsel for the respondent has argued that the mechanic sent by the opposite parties was not allowed to see the machines which were reported to be defective by the complainant. As a matter of fact the complainant wanted that the machinery to be returned to the respondents and the entire money paid be refunded. The complainant was not interested in pursuing his self employment. It was also argued that the appeal has not been filed within the time prescribed by law and is, therefore, not maintainable. The complainant has failed to prove the manufacturing defect in the machinery. A perusal of the record goes to show that the machinery was supplied by the respondent to the complainant in the month of June, 1997 against the quotation offered by the opposite parties on 27.5.1997. The machinery had reached the complainant in August, 1997. There is no document available on record which could go to show that the complainant immediately on receipt of the machinery got the quality of machines checked and reported the matter to the manufacturers/suppliers who are the respondents. As a matter of fact no terms and conditions in regard to the supply or quality of machines have been placed on record, nor they were placed before the District Consumer Forum. In case the complainant was not satisfied with the quality of machines then it was his duty to have entered into correspondence with the respondents. No such copies of correspondences were produced before the District Consumer Forum which could have shown the concern of the complainant. The complainant has relied on the report of the chartered engineer dated 5.1.2001. The bargain was struck in the year 1997 and the supplies were made in that year itself, therefore, the report of the chartered engineer which is dated 5.1.2001 cannot be relied upon. Again the affidavit was filed by one Rajendra Patel working for the opposite party No. 1 as a mechanic who stated that he had contacted the complainant and found that the machines supplied were in working and proper order and they were in accordance with the prescribed standard having no defect. An affidavit was also filed by Sri S.M. Patel, partner of opposite party No. 1 stating therein that in response to the letter received from the opposite party No. 2 a mechanic was sent to check the defects and the mechanic found the machines in order. The case of the complainant is that when the machines were taken out from the wooden packing, he found several defects therein. As a matter of fact, the defects specially manufacturing defect cannot be pointed out at the time of opening of the packing. It is only when the machines are installed, their quality and the capacity can be examined. The District Consumer Forum was, therefore, quite right in coming to the conclusion that the complainant could not conclusively prove that there was manufacturing defect in the machines supplied. A perusal of the judgment and order goes to show that the machines were supplied in the month of August, 1997 and a qualified mechanic checked the machines in the year 1999. The letter under which the order for supply of the machine was placed does not indicate any terms and conditions, therefore, pointing out the defects after two years is of no relevance specially when the Senior Mechanic of the opposite party had visited the complainant much earlier and found all the machines in a fit condition. A perusal of the order placed to the supplier, opposite parties will go to show that no order for motor was ever placed and, therefore, the motor was not supplied whereas the complainant filed papers before the District Consumer Forum in which it was stated that the defective motor was supplied by the opposite parties. Therefore, no reliance can be placed on the allegations made by the complainant that there was manufacturing defect in the machines. From the record of the case, it has no where been found that there was any defect in the machines at the time they were received by the complainant or even after the installation of the machines if they were at all installed. In a case reported in 1994 (3) CPR Page No. 395, the National Commission has held that the manufacturer cannot be ordered to replace the vehicle or refund its price merely because some defect (not manufacturing defect) appears which can be rectified or defective part can be replaced. As already discussed earlier no defects had come to the light after the machines were received or installed. The report of the chartered engineer given after a long period of more than three years will not mean that the defects were there right from the beginning in the year 1997 when the machines were supplied.

THE learned Counsel for the respondent has argued that the appeal is barred by time. THE judgment and order passed by the Forum are dated 28.12.2000 and the appeal was filed on 31.3.2001. THEre is an application for condonation of delay in filing the appeal already placed on the record of the appeal. THE learned Counsel for the appellant has argued that since the copy of the judgment and order was obtained on 24.3.2001 and the appeal was filed on 31.3.2001, the condonation application has no relevance and the appeal is within time. In the condonation application, it has been stated that the Counsel had already been asked to obtain the copy of the judgment and order immediately after it was delivered. THE Counsel failed to obtain the copy and thereafter the father of the complainant fell sick and, therefore, there was delay in filing the appeal and condonation of time was prayed for. THE appellant cannot be allowed to blow hot and cold in the same breath. It was clearly in the knowledge of the appellant that the complaint has been dismissed. THE ground advanced is that the complainant''s father had fallen sick and after his recovery steps were taken to file the appeal. No medical certificate or other proof has been filed before us. Similarly the ground that the Counsel has asked to obtain the copy of the order and the Counsel failed to obtain such a copy is also not a solid ground for allowing the condonation of delay. We, therefore, find that there is no sufficient cause shown to enable us to consider favourably, the application for condonation of delay in filing the appeal. THE learned Counsel for the respondent has placed reliance on the case reported in III (1992) CPJ 55 (NC) in which it has been held that by virtue of failure of the opposite party to file an appeal within the statutory period of limitation, a vested right had accrued to the opposite party and such right could not be taken away by an order of condonation of delay in presenting the appeal passed behind the back of the opposite party without any notice. In the circumstances, we find that the appeal is barred by limitation.

IN view of what has been stated above, the appeal is liable to be dismissed and the judgment and order passed by the learned District Forum are liable to be confirmed. ORDER The appeal is dismissed. The judgment and order passed by the learned District Forum are confirmed. IN the circumstances of the case, there will be no order as to cost. Let copy of this order be made available to the parties as per rules. Appeal dismissed.